Delhi District Court
State vs . Mohd. Bashit Ali @ Sameer, on 2 February, 2013
IN THE COURT OF SH. VIRENDER BHAT, A.S.J. (SPECIAL
FAST TRACK COURT), DWARKA COURTS, NEW DELHI.
SC No. 41/13.
Unique Case ID No. 02405R0222682010.
State Vs. Mohd. Bashit Ali @ Sameer,
S/o Mohd. Hashim,
R/o H. No.274, Gali No.28,
Mahavir Enclave Part-IInd,
Dabri,
New Delhi.
Date of Institution : 03.9.2010.
FIR No.128 dated 12.5.2010.
U/s. 363 IPC
P.S. Dabri.
Date of reserving judgment/Order : 23.1.2013.
Date of pronouncement : 02.2.2013.
JUDGMENT
1. The accused has been facing trial for having committed the offences punishable u/s.363/366/376 IPC.
2. As per prosecution case, prosecutrix aged 14½ years (real name withheld in order to protect her identity and hereinafter referred to as 'S') had gone missing on 11.5.2010 at about 3 p.m. when she had gone to fetch some goods from a shop in the gali. The information about disappearance of the prosecutrix was given to the police station by her father on 12.5.2010, on the basis of which FIR was registered u/s.363 IPC. The investigation was handed over to SI Anil Kumar. He started search for the minor girl and transmitted the message of her disappearance all over India.
SC No.41/13. Page 1 of 22Meanwhile, the father of the prosecutrix gave a supplementary statement stating that on inquiries, he has come to know that his daughter has been taken away by a neighbourhood boy namely Sameer @ Mohd. Bashit. He further stated that Mohd. Bashit may have taken his daughter to Mumbai where his friend Aslam is running a barber shop. Accordingly, SI Anil Kumar alongwith Const. Surender reached Mumbai and made inquiries from Aslam. He admitted that Mohd. Bashit is his friend but denied that he had brought any girl to his place. Thereafter, investigation of the case was entrusted to WSI Sunita Sharma. She apprehended the prosecutrix as well as Ms. Bashit from bus stand near Power House Mahavir Enclave Part-II, Dabri, New Delhi, on the basis of a secret information. The father of the prosecutrix was accompanying her at that time and he identified his daughter. Accused Bashit is stated to have admitted during sustained interrogation that he had taken away the prosecutrix 'S' to Mumbai where he committed sexual intercourse with her. Accordingly, sections 366/376 IPC were added to the case. The prosecutrix was got medically examined in DDU Hospital. Accused came to be arrested and he also was got medically examined whereupon the doctor opined that he is capable of performing sexual act. The exhibits handed over by the doctor to the IO were sent to FSL for forensic examination. Statements of the relevant witnesses were recorded.
3. After completion of the investigation, Charge Sheet was laid before the concerned Magistrate, who committed the case to the court of Sessions.
4. On 01.10.2010 the accused was charged with having SC No.41/13. Page 2 of 22 committed the offences punishable u/s.363/366/376 IPC. He pleaded not guilty to the charges and accordingly trial was held. The prosecution has examined 13 witnesses to prove the charges against the accused. The accused was examined u/s.313 Cr.PC on 09.11.2011 wherein he denied all the incriminating facts and circumstances put to him. He claimed false implication and stated that at the relevant time when the FIR has been registered in this case he was residing in Mumbai and working as a carpenter in Hazi Compound. One day he received a phone call from his friend Aslam asking him to meet him on 07.6.2010. when he went to meet Aslam on 07.6.2010 at his shop at Ulhas Nagar, Mumbai, one informer was also present there, who took him to P.S. Ulhas Nagar, Mumbai, and handed over him to police officials. On 11.6.2010 Delhi Police officials i.e. one Constable and one SI came there and brought him to Delhi by train. They reached Nizamuddin railway station on 12.6.2010 from where he was brought to P.S. Dabri in an auto rikshaw. Thereafter he was medically examined. He specifically stated that the prosecutrix never stayed with him during the relevant period nor did she met him. He also stated that he had never taken the prosecutrix to Mumbai and never committed the rape upon her.
5. The accused has also examined two witnesses in his defence. SI Shanti Prakash has appeared as DW1 whereas HC Suresh Kumar has appeared as DW2 and both have deposed that on the direction of ACP, P.S. Dabri, they had gone to Mumbai in connection with investigation of this case and were instructed to bring a boy from Mumbai to Delhi, who had been apprehended by the police officials of P.S. Ulhas Nagar, Mumabi. They further SC No.41/13. Page 3 of 22 deposed that they brought one boy from P.S. Ulhas Nagar, Mumbai to Delhi on 12.6.2010 and handed over him to SHO P.S. Dabri.
6. I have heard Ld. APP for State, Ld. Counsel for the accused and have perused the material on record. Ld. APP submitted that even though there is some discrepancy regarding place and manner of arrest of accused but despite that the charges against the accused stand established during the testimony of prosecutrix (PW11) and her father (PW1). According to him, the accused is liable to be convicted for having committed the offences punishable u/s.363/366/376 IPC.
7. On the other hand, Ld. Counsel for the accused submitted that the prosecution has failed to lead any cogent evidence to establish that the prosecutrix was below the age of 16 years on the date of incident. He further submitted that there are material discrepancies and contradictions in the testimony of prosecutrix which go to the root of the prosecution case and make it extremely doubtful. He further argued that there are contradictions between medical evidence and ocular testimony of the witnesses which also bring the prosecution case within the sphere of doubt. He further argued that the prosecution case must also fail in view of different versions given by the police officials regarding manner and place of arrest of the accused. He submitted that according to the IO (PW13) supported by PW1, PW2, PW4 & PW7, the accused as well as the prosecutrix were apprehended from a bus stand in Mahavir Enclave at Delhi, whereas it is established from the testimonies of DW1 & DW2 that the accused had been apprehended by the police officials at P.S. SC No.41/13. Page 4 of 22 Ulhas Nagar, Mumbai and he was then brought to Delhi by these two DWs and handed over to the SHO, P.S. Dabri. He submitted that there is no evidence on record as to who brought the prosecutrix from Mumbai to Delhi and in what circumstances. He urged this court to acquit the accused. He also relied upon the judgment of Uttranchal High Court reported as 2005(4) Crimes 374 (Uttranchal), Hayat Singh vs. The State, the judgment of Bombay High Court reported as 2006(1) Crimes 305, Bhagwan Charan mate vs. State of Maharashtra, and two judgments of the Supreme Court reported as (2007) 6 SCC 465, Narayan Alias Naran vs. State of Rajasthan, 2009 V AD (Cr.)(S.C.) 10, Musauddin Ahmed vs. The State of Assam, to canvass that where there is contradiction between medical evidence and the ocular testimony of the witnesses and whether the testimony of the prosecutrix turns out to be improbable and appears to have accompanied the accused willingly, without any force or coercion, the accused is entitled to acquittal.
8. At the outset, I may mention that the prosecution has not lead any cogent and admissible evidence to show that prosecutrix was a minor at the time of her disappearance. One witness (PW6) has been examined in this regard. He was Vice Principal, Govt. Girls Sr. Sec. School, Bindapur, New Delhi, where the prosecutrix has taken admission in Class-IX on 15.6.2009. The date of birth of the prosecutrix was recorded as 17.9.1995 at the time of her admission in the said school on the basis of her transfer certificate Ex.PW6/B issued by the school in which she had studied upto Class-VIIIth. However, prosecution has not made any effort to summon the records from the school, which the SC No.41/13. Page 5 of 22 prosecutrix had first attended and in which she had taken admission first of all. The transfer certificate though mentions the date of birth of the prosecutrix as 17.9.1995, yet it is not clear as to on which basis was the same recorded. Whether or not any date of birth certificate of the prosecutrix was submitted by the parents of the prosecutrix at the time of her admission in the school. The date of birth of the prosecutrix in a rape case is a fact which needs to be proved beyond reasonable doubt like other facts in issue. The date of birth of prosecutrix cannot be taken to be proved merely on the basis of assumptions and conjunctures. Therefore, manifestly there is no admissible evidence on record to show that the date of birth of the prosecutrix is in fact 17.9.1995. Thus the prosecution has failed to prove that the prosecutrix was a minor at the time of her disappearance.
9. The prosecutrix has been examined as PW11 and her father i.e. the complainant has been examined as PW1. It may be noted here that the statement of the prosecutrix, if found to be worth of credence and reliable, requires no corroboration and the accused can be convicted solely on the basis of her testimony. However, it needs to be stressed that even in case of rape, the onus is always on the prosecution to prove affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. It is not the duty of the defence to explain as to how and why the accused has been falsely implicated in the case. The prosecution case has to stand upon its own legs and cannot take support from the weakness of the defence. However, great suspicion against the accused and however strong the moral belief and conviction of the court, unless the offence of the accused is SC No.41/13. Page 6 of 22 established beyond reasonable doubt on the basis of legal evidence and material on record, he cannot be convicted. There is initial presumption of innocence of the accused and the prosecution has to bring home the offence against the accused by reliable evidence. The accused is entitled to benefit of every reasonable doubt. (vide Uday vs. State of Karnataka, AIR 2003 SC 169).
10. PW1 has deposed in his examination in chief that on 11.5.2010 his daughter i.e. prosecutrix had gone to market at about 3 p.m. to purchase some goods but she did not return for a long time. He tried to trace her in the locality but could not find her. He went to the police station Dabri to lodge a complaint about disappearance of his daughter but the police asked him to trace the girl at his own level. He again made efforts to trace his daughter but could not succeed. He went to the police station again on the next date and lodged the missing report Ex.PW1/A. He further stated that on enquiry from the neighbours, it was found that a boy namely Sameer @ Bashit Ali was also missing since previous day and he has gone alongwith the prosecutrix to his friend Aslam in Mumbai. The witness further states that he alongwith the police team went to Mumbai, but the accused Sameer had left the residence of Aslam by that time and they returned to Delhi. On 13.6.2010 he came to know that accused Sameer and his daughter had got down from a bus at bus stop Power House, Mahavir Enclave Part-II, New Delhi. At that time, he was present in the police station. He alongwith IO and one Constable reached the bus stand at Mahavir Enclave near Power House. The informer had also accompanied them. He identified SC No.41/13. Page 7 of 22 his daughter as well as the accused. The accused was apprehended. Recovery memo of his daughter was prepared, which he proved as Ex.PW1/B. After seeing him, his daughter started weeping and told him that the accused had enticed her and taken her to Mumbai. She also told him that accused committed rape upon her on the promise of marriage. He proved the arrest of accused vide arrest memo Ex.PW1/C.
11. PW11 i.e. prosecutrix has deposed that on 11.5.2010 she was sent by her mother to buy bread. Accused met him there and offered her cold drink and Samosa. After having it, she felt vomitting sensation and stomach pain. Accused removed her from there and she thought that he was taking her to her home but the accused took her to Mumbai in a train. On regaining consciousness, she did not ask any question to the accused. On getting down from the train at Shahad Station, accused telephoned his friend Aslam, who came there and took them to a rented room where all three of them stayed for three days. Then her father came there searching for her, but the accused took her to Rashid Compound in Mumbai before her father could locate her. They stayed there with Sapna and Munna, a friend of accused Sameer for about 8 days. She had a fight with the accused there as she was insisting him to let her go home but he refused. When accused was left with no money, they came back to Delhi. When the bus stopped at Power House bus stand, she freed herself from accused and got down there as her father used to park his taxi there. Accused also got down from the bus alongwith the bag, which he was carrying. Her father was standing there, caught hold of accused and also called police. He then handed over the SC No.41/13. Page 8 of 22 accused to the police. She went to the house of her maternal uncle. Next day, her father took her to the police station, where her statement was recorded and she was got medically examined at the DDU Hospital. Next day, her statement was recorded in the court also and she was sent to Nirmal Chhaya as she did not want to go home at that time. She further stated that while she was staying in Rashid Compound with accused Sameer, he had raped her against her wishes. Accused had also threatened to kill her if she insisted him to take her back home. She proved her statement u/s.164 Cr.PC as Ex.PW9/A.
12. In the cross examination, she stated that she had gone to buy bread from a shop situated at a distance of 1 km. from her home, even though there are many shops just opposite her home selling bread, eggs, milk etc. Accused had brought Pepsi and Samosa after talking to her and she had remained at the bread shop while accused had gone to buy Samosa etc. She further stated that there were many persons present at the railway station and also in the train but could not tell their number. They got down at Shahad Station at 3/4 p.m. and admitted that there were police officials and coolies at the railway station at that time but she did not tell anybody that accused brought her there against her will. She also did not complaint to the public persons on the way or those living in that area about the accused. She did not go out of the rented room for three days during which she was there and came to know regarding presence of her father in Mumbai when a telephonic call was received by accused from her father. They went to Rashid Compound by train and reached there in one and a half hours. That time also, she did not complain to anybody.
SC No.41/13. Page 9 of 22There were only two rooms in Rashid Compound. She alongwith accused Sameer, Sapna and Munna were living in one room. She did not go out of the room during her stay there. Sapna and Munna had met them at the railway station but did not remember the date. She did not know them before that day. She admitted that accused used to go for work during her stay at Mumbai. He used to leave the room at about 9 a.m. and return at about 7 p.m. and in his absence, Munna and Sapna used to be with her. She denied the suggestion that accused was arrested in Mumbai at Ulhas Nagar police station. According to her, they returned to Delhi from Mumbai by train. She never tried to run away while she was staying in Mumbai. It took them one and a half day to reach Delhi. She got down at Power House bus stand at about 4 p.m. or 5 p.m. Three male police officials had come there on being called by her father. From there, she had gone to police station alongwith her father and uncle in her father's car and she did know by what means, accused was taken to the police station. She denied that accused never had any physical relations with her, with or without her will. She also denied that she had gone to Mumbai on her own and stayed there with Aslam. She also denied that she was having a love affair with Aslam and Aslam had got accused Sameer arrested in this case falsely. She denied that accused was brought to Delhi by police officials of P.S. Dabri from Mumbai on 12.6.2010.
13. A close scrutiny of the testimony of the prosecutrix reveals that she is not a reliable and trustworthy witness. Her testimony indicates manifestly that she had accompanied the accused to Mumbai on her own accord and stayed there with him on her own volition. It seems that the prosecutrix and the accused SC No.41/13. Page 10 of 22 had already made a plan to run away from Delhi and had fixed a place where they would meet on 11.5.2010. It is for this reason that the prosecutrix did not buy bread from the shop just outside her house and walked about 1 km. from her house to a place where accused met her. She readily consumed the Samosa and Pepsi offered to her by the accused. It is also evident that she waited for the accused at the bread shop for about 20 - 25 minutes till he returned with Samosa and Pepsi. She nowhere deposes that she became unconscious after consuming Samosa and Pepsi and never knew where she was being taken by the accused and by what mode of conveyance. She states that the accused took her to Mumbai by train. It is evident that she readily accompanied the accused from the market upto the railway station, boarded the train there alongwith accused and reached with him to Mumbai. While in Mumbai also, she voluntarily stayed with him in the rented accommodation of Aslam and did not try to run away at any point of time, even during the absence of he accused from the room. She has admitted that accused used to leave for his work at 9 a.m. and used to return at 7 p.m. Even though, she stated that Munna and Sapna used to be with her during the absence of the accused but she nowhere states tht she requested these two to let her go and they confined her in the room forcibly.
14. In the ultimate analysis of the deposition by the prosecutrix I feel that it does not inspire any confidence at all and no conviction for any offence at all can be based upon her testimony, which if done would be against the established cannons of justice.
SC No.41/13. Page 11 of 2215. The prosecutrix in her deposition has stated that while her stay with the accused in Rashid Compound, accused raped her against her wish and also threatened her to kill her if she insisted upon him to take her back home. In the circumstances, in which the prosecutrix eloped with the accused and was staying with him at Mumbai, her said statement appears to be very vague, improbable and unreliable. As per her own version, Munna and Sapna were also staying with them in Rashid Compound and all of them were living in one room. It is therefore, not worth belief that the accused could have raped her in presence of Munna and Sapna. It was for the prosecutrix to mention in detail the situation and the time when she was subjected to sexual assault against her wish by the accused. Her bald statement that she was raped by the accused is not enough. She has nowhere stated whether it was day time or night time when the accused allegedly violated her and whether or not in presence of Spana and Munna.
16. Taking into account, the overall facts and circumstances, in which the prosecutrix had herself voluntarily accompanied the accused to Mumbai and was staying there with him willingly, it is difficult to believe that the accused had committed sexual intercourse with her against her will. Even this fact is also not established from the overall testimony of the prosecutrix.
17. Now coming to the arrest of the accused. PW1, PW2, PW4, PW7, PW11 & PW13 have deposed that the accused and the prosecutrix were apprehended at Power House bus stand, Mahavir SC No.41/13. Page 12 of 22 Enclave Part-II, New Delhi, when they alighted from a bus. However, the contention of the accused is that he was apprehended by the personnels of P.S. Ulhas Nagar, Mumbai, on 07.6.2010 and was handed over to officials of Delhi Police on 11.6.2010 who brought him to Delhi on 12.6.2010. DW1 & DW2 have also deposed on these lines.
18. According to PW1, when he was present in the police station on 13.6.2010, an informer gave the information that the accused and the prosecutrix have got down from a bus stop at Mahavir Enclave Part-II, New Delhi, pursuant to which he alongwith IO and one Constable reached that bus stand. He identified both the accused as well as prosecutrix. In the cross examination, he deposed that the accused was arrested on 10.30/11 p.m. and was then taken to police station. Accused and his daughter were not having any luggage with them. He did not notice the height of the informer and could not tell his description. He also deposed that accused and his daughter were recovered between 10.30 p.m. to 11 p.m. on the said date i.e. 13.6.2010.
19. PW2 is the lady Constable Mausam, who was called by IO SI Sunita Sharma to Mahavir Enclave near Power House at about 10.45 p.m. on 12.6.2010. She found father of the prosecutrix, one Constable and the IO present there. A girl and the boy were also present at the spot. She proved the recovery memo of the girl Ex.PW1/B. The prosecutrix was handed over to her as well as father of the prosecutrix and she took her to DDU Hospital for medical examination. In answer to a specific question put to him by the Ld. APP with permission of the court, she did not SC No.41/13. Page 13 of 22 remember if secret informer was also present at the spot and stated that the father of the prosecutrix had pointed out the prosecutrix. In the cross examination, she reiterated that the aforesaid proceedings took place on 12.6.2010 and not on 13.6.2010. She had joined her night control room duty at 8 p.m. and the Constable from P.S. Dabri had approached her with message of the IO at 8.30 p.m. She reached P.S. Dabri in 5 - 10 minutes made, met IO SI Sunita Sharma and left alongwith her in an auto rikshaw. Father of the prosecutrix met them at Mahavir Enclave Part-I. She stated that about 50 - 60 public persons were present at the spot, but the IO did not request any public person to join the investigation before arresting the accused. According to her, the prosecutrix and accused were not having any luggage with them. She remained in the police station till 8 a.m. of the next date.
20. As per the deposition of PW4 on 12.6.2010, he alongwith IO SI Sunita and Const. Rajesh went to Ganda Nala, Dabri, in search of accused and the prosecutrix. When they reached near Pulia (a small bridge) at Ganda Nala, father of the proseuctrix met them. Thereafter, they went towards Sitapuri Mahavir Enclave Part-I, where secret informer met IO and told her that a boy and a girl were standing at the bus stand near Power House. IO SI Sunita had called one lady Constable through telephone from the police station. Thereafter, they went towards Power House, saw a girl and the accused present there, who was identified by the father of the prosecutrix. The girl was apprehended by the Lady Constable Mausam and he apprehended the accused. They returned the police station at 1 a.m. in the night SC No.41/13. Page 14 of 22 and thereafter accused and the prosecutrix were taken to DDU Hospital for medical examination. He had received the sealed pullindas from the doctor, which he had handed over to the IO. In the cross examination, he stated that they had left the police station at 10.45 p.m. for Ganda Nala in a private gypsy driven by a private driver. He did not know who had arranged the said gypsy. He deposed that PW1 joined them at Ganda Nala and also sat in the same gypsy. IO called lady Constable Mausam from P.S. Dabri after meeting the secret informer at Mahavir Enclave. He admitted that during the personal search of the accused, no rail ticket was recovered and no luggage was found with either the girl or the boy. According to him, they had reached the spot at about 12.20 a.m. on the night intervening between 12.6.2010 and 13.6.2010 and Const. Mausam remained with them till 2.30 p.m. on the next date i.e. 13.6.2010. According to him, the accused and the prosecutrix were taken to DDU Hospital at 1 a.m. in the night in the same gypsy.
21. PW7 is Const. Rajesh Kumar. According to him, he alongwith IO SI Sunita Sharma and Const. Mahesh had left police station at about 10.30 - 10.45 p.m. by a private vehicle. He did not remember the make of the vehicle and the name of the driver of the vehicle. The father of the prosecutrix had joined them at Ganda Nala and then they reached Sitapuri within ten minutes. He did not remember whether accused and the prosecutrix were having any luggage or not. According to him, nothing was recovered in the personal search of the accused and they remained at the spot for half an hour. He remained on duty till 8 a.m. on the next day.
SC No.41/13. Page 15 of 2222. As noted hereinabove, the prosecutrix (PW11) has deposed in this regard that when the bus in which she was travelling alongwith accused stopped at Power House bus stand, she freed herself from accused and got down there as her father used to park his taxi there. Accused also got down from the bus alongwith bag which he was carrying. His father was standing there and he caught hold of the accused and then called police. Her father then handed over her to police. From there, she went to the residence of her maternal uncle. In the cross examination, she deposed that she had gown down at Power House bus stand at about 4 p.m. or 5 p.m. Three male police officials had come there on being called by her father. From that place, she was taken to the police station and then to her maternal uncle's house. She also stated that she went to the police station with her father and her uncle in her father's car. She did not know by what means, accused was taken to police station by the police.
23. As per the deposition of PW13, the investigating officer SI Sunita Sharma, she alongwith Const. Rajesh and Const. Mahesh left police station at 9.15 p.m. on 12.6.2010 for the search of the prosecutrix reached near Ganda Nala bridge, Dabri, where father of the prosecutrix met them and joined them. Thereafter, they went towards Mahavir Enclave Part-II, where secret informer met her and gave her information about the presence of prosecutrix alongwith one boy near Power House bus stand. In the cross examination, she stated that they had gone to Ganda Nala from police station on foot and from there, they took an auto rikshaw and according to her, father of the prosecutrix proceeded to the SC No.41/13. Page 16 of 22 spot in his own car and not in the auto rikshaw. She stated that no bus or train ticket were recovered from the accused or the prosecutrix and they were not having any luggage with them. According to her, lady Constable Mausam had reached the spot at 9.45 p.m. and they had returned to the police station at 10.55 p.m. She further stated that from the spot, they returned to the police station in a private car, probably a taxi and she had paid the fare of the same. She stated that the prosecutrix remained in the custody of Const. Mausam in P.S. Dabri during the night. The father of the prosecutrix was also present in the police station during the night and Const. Mausam was relieved after lodging the prosecutrix in Nirmala Chhaya at 7 p.m. or 8 p.m. on 13.6.2010. she also stated that the secret informer followed them in his own vehicle. She offered no comment when asked whether Aslam had got the accused arrested at P.S. Ulhas Nagar, Mumbai, on 07.6.2010 in connivance with the father of the prosecutrix. She denied that HC Suresh and SI Shanti Prakash had gone to Mumbai on 09.6.2010 in connection with this case and that they had taken the custody of the accused on 11.6.2010 from P.S. Ulhas Nagar.
24. It is evident that there are material discrepancies and contradictions in the testimonies of aforesaid witnesses regarding the circumstances in which the accused and the prosecutrix are claimed to have been apprehended in Mahavir Enclave at Delhi on 12.6.2010. The police witnesses i.e. PW4, PW7 & PW13 have stated that they had left the police station on 12.6.2010 at 10.45 p.m. in search of the accused and the father of the prosecutrix joined them when they reached near a small bridge at Ganda Nala. They also stated that thereafter they proceeded towards Sitapuri SC No.41/13. Page 17 of 22 where secret informer met them and provided the information about the presence of the accused and the prosecutrix at the bus stop to PW13. To the contrary, the father of the prosecutrix (PW1) stated that he was present in the police station when the secret informer gave the information to the IO that accused and prosecutrix have got down from a bus stop at Mahavir Enclave Part-II, New Delhi, and thereafter he alongwith IO and one Constable reached that bus stand. To add more confusion, PW11 (prosecutrix) had stated that she as well as the accused got down at Power House bus stand at 4 p.m. or 5 p.m., she found her father standing there, who caught hold of the accused and called police whereupon three male police officials came to the spot. PW4, PW7 & PW13 have stated that a lady Constable Mausam was summoned after an apprehension of accused and the prosecutrix at the bus stop. Lady Constable Mausam appearing as PW2 has deposed that she got the message from the IO at 8.30 p.m. reached P.S. Dabri and left the police station alongwith PW13 in an autorikshaw. PW7 has stated that he alongwith PW4 & PW13 left the police station in a private vehicle, whereas PW13 has stated that they had walked from the police station on foot and from there they took an auto rikshaw. PW11 has stated that the accused was carrying his bag also whereas all other witnesses have stated that the accused was not carrying any luggage at all. PW13 has stated that after apprehending the prosecutrix and the accused, they returned to the police station in a taxi, for which she had paid the fare, whereas the prosecutrix has stated that she was taken to the police station in her father's car and was accompanied by her father and maternal uncle in the car. PW1 has nowhere stated that he had reached the spot in his own car SC No.41/13. Page 18 of 22 and brought his daughter to the police station in his car.
25. In view of the aforesaid stark contradictions in the deposition of these witnesses, the contention of the prosecution that accused and the prosecutrix were apprehended from a bus stop at Mahavir Enclave in Delhi on 12.6.2010 stands falsified. The testimonies of DW1 & DW2 that they had brought the accused from P.S. Ulhas Nagar, Mumbai seem to be probable and also stands proved from the evidence on record. DW1 has testified that in June, 2010 on the instruction of SHO, P.S. Palam Village, he alongwith DW2 had gone to police station Ulhas Nagar, Mumbai, and the police officials of P.S. Ulhas Nagar handed over to him one boy, who was involved in the present case FIR No.128/10. He further stated that they had brought the said boy to Delhi and handed over the same to the SHO, P.S. Dabri, vide application Ex.DW1/A. He also proved the copy of the application which he had submitted at P.S. Ulhas Nagar, Mumbai, for taking the accused Bashit Ali to Delhi on 11.6.2010 as Ex.DW1/B. This application bears the seal of P.S. Ulhas Nagar and also bears the signature of the police official of that police station. DW2 has fully corroborated the version of DW1. Even though these two witnesses could not say whether the accused present in court was the same person, whom he had brought from Mumbai to Delhi on 11/12.6.2010, yet it is evident from the documents Ex.DW1/A and Ex.DW1/B that they had brought this very accused Bashit Ali required in case FIR No.8/10 (present case) from Mumbai to Delhi on that day.
26. It is therefore established from the evidence on record that the accused was not apprehended at bus stop Mahavir SC No.41/13. Page 19 of 22 Enclave, New Delhi, on 12.6.2010 alongwith the prosecutrix as projected by the prosecution. He was apprehended by the police officials of P.S. Ulhas Nagar in Mumbai. He was brought by DW1 & DW2 from Mumbai to Delhi on 12.6.2010 and handed over to SHO, P.S. Dabri. It is also evident that the accused was brought alone from Mumbai to Delhi by these two defence witnesses.
27. Having said so, I do not find any evidence on record to demonstrate as to how the prosecutrix reached Delhi from Mumbai. Various inferences can be drawn in this regard. Either the prosecutrix had not been taken to Mumbai by the accused at all or she had returned to Delhi on her own and later on the accused was got apprehended by her father in collusion with the police officials of P.S. Ulhas Nagar in Mumbai. However, in the absence of any evidence on record in this respect, nothing can be said with certainty. The facts remains that the prosecutrix had not come to Delhi alongwith accused on 12.6.2010 and was not apprehended alongwith accused at bus stop Mahavir Enclave, as alleged by the prosecution.
28. The police officials of P.S. Ulhas Nagar, Mumbai, have not been examined as witnesses by the prosecution. It is not clear that under which circumstances and on the basis of what information was the accused arrested by the police officials in Mumbai. There is nothing on record to suggest that any information was sent by Delhi Police to Mumbai police saying that the accused is wanted in a criminal case in Delhi and he be apprehended, if found in Mumbai. In view of this matter, the explanation furnished by the accused in his statement u/s.313 SC No.41/13. Page 20 of 22 Cr.PC that he was apprehended by the officials of P.S. Ulhas Nagar, Mumbai, at the instance of his friend Aslam seems to be probable and trustworthy.
29. It is therefore manifest that the prosecution has failed to lead any cogent and reliable evidence to establish the guilt of the accused. The only irresistible conclusion which can be drawn from the evidence lead by the parties is that the prosecution has failed to prove the charges against the accused.
30. Therefore, the accused is liable to be acquitted and is hereby acquitted.
31. Before parting with, I find it my duty to put on record the pain and anguish of this court for the manner in which the Investigating Officer (PW13) has botched up the investigation at the instance of and in collusion with the father of the prosecutrix (PW1). She appears to have danced to the tunes of PW1 and mentioned twisted facts in the charge sheet. It is clear case, not of shoddy investigation but of investigation under the influence and control of the complainant. As observed hereinabove, it is established from the record that the accused had been apprehended in Mumbai by the officials of Police Station Ulhas Nagar, Mumbai and was brought to Delhi by DW-1 and DW-2 but the I.O. falsely claimed to have apprehended him alongwith prosecutrix at a bus stop in Mahavir Enclave, New Delhi pursuant to a secret information. The investigating officer also spoke a blatant lie in this regard before this court also while appearing as PW13. The other police officials appearing as PW2, PW4, PW7 and SC No.41/13. Page 21 of 22 PW11 also lied in this court in this regard at the behest of the I.O.
32. Therefore, let a copy of the judgment be sent to the Addl. Commissioner, South West, Delhi and the Commissioner, Delhi Police, New Delhi so that they get to know how their subordinates are conducting investigation and telling lies in the Court and if found necessary, to initiate enquiry in order to find out why the twisted and manipulated version of case was put up before the court in this case and to sensitize and train the officials found guilty so that such incidents do not occur again.
Announced in open (VIRENDER BHAT)
Court on 02.2.2013. Addl. Sessions Judge
(Special Fast Track Court)
Dwarka Courts, New Delhi.
SC No.41/13. Page 22 of 22